JFPP2010.indb 1 9/7/10 3:47 PM - saf.org

JFPP2010.indb 1 9/7/10 3:47 PM

JFPP2010.indb 2 9/7/10 3:47 PM

Journal on Firearms and Public Policy

Volume 22

-tion of the Center for the Study of Firearms and Public Policy of the Second Amendment Foundation.

Board of Advisors

Randy E. Barnett, J.D. Edward F. Leddy, Ph.D.David Bordua, Ph.D. Gary Mauser, Ph.D..

Brendan Furnish, Ph.D. Glenn Harlan Reynolds, J.D

Alan Gura, J.D. William Tonso, Ph.D.

Second Amendment FoundationPublisher

on Firearms and Public Policy, a division of the Second Amendment

JFPP2010.indb 3 9/7/10 3:47 PM

©2010 by the Second Amendment Foundation.

-

and reviews.

--

terials.

JFPP2010.indb 4 9/7/10 3:47 PM

Journal on

Firearms & Public Policy

Volume 22 Fall 2010

OTIS COLLEEN

SECOND AMENDMENT FOUNDATION, INC.,AND ILLINOIS STATE RIFLE ASSOCIATION,

Petitioners,v.

CITY OF CHICAGO,

Note 1

Friends of the Second Amendment:

A Walk through the Amicus Briefs in

McDonald v Chicago

Ilya Shapiro 5

Plaintiffs’ Brief 33

Respondents’ Brief 76

Amici in Support Of Plaintiffs

Law Professors 130

Attorneys General 153

JFPP2010.indb 5 9/7/10 3:47 PM

JFPP2010.indb 6 9/7/10 3:47 PM

Note

District of Columbia v. Heller-

(ISRA) and the Second Amendment Foundation (SAF). David Si-

McDonald v. Chicago,District Court for the Northern District of Illinois before the 7th

14th Amendment.-

-tional.

cer-tiorari. Certiorari

Just after the decision, McDonald attorney, Alan Gura, comment-*

JFPP2010.indb 1 9/7/10 3:47 PM

JOURNAL ON FIREARMS & PUBLIC POLICY VOLUME XXII

- 2-

conduct, neither does the Second Amendment tolerate the

The Second Amendment is itself a reasonable, common-

on this score there is tremendous cause for celebration as

JFPP2010.indb 2 9/7/10 3:47 PM

NOTE

JFPP2010.indb 3 9/7/10 3:47 PM

JFPP2010.indb 4 9/7/10 3:47 PM

More Friends of the Second Amendment:

A Walk through the Amicus Briefs in McDonald v. City of Chicago

By

Mc-Ilya Shapiro is Senior Fellow in Constitutional

Studies at the Cato Institute, and Editor-in-Chief of the Court Review. The author would like to thank Matthew Aichele, Travis Cushman, Andrew Kasnevich, Katy Noeth, Eric Tellado, and Evan Turgeon for their assistance with this article.

-

-

before the time any-

Heller victor Alan Gura in McDonald v. Chicago—the Court held NRA

JFPP2010.indb 5 9/7/10 3:47 PM


- 6-

v. Chicago McDonald

-

--

Slaughterhouse Cases,

Heller

how the

Mc-Donald -

amicus briefs (fourth all-time). Many focused on the Due Process versus Privi-

-

The Con-stitution in 2020

amici insisted on Heller

amici -Heller

so has to And, of course, several amici -

JFPP2010.indb 6 9/7/10 3:47 PM

SHAPIRO AMICUS BRIEFS IN MCDONALD V. CHICAGO

- 7-

issues.The amici

-

One notable amicus

the members of both the House and the Senate. That brief details

--

amicus -

-tion of Slaughterhouse -

-

amici

-

e.g. -

JFPP2010.indb 7 9/7/10 3:47 PM


amicus briefs in McDon-ald v. Chicago

amiciHeller, the U.S. Government

amicusi.e.

been launched.

PETITIONERS’ AMICI

1. ACADEMICS FOR THE SECOND AMENDMENT

Interest

Argument The a

movement.

2. AMERICAN CENTER FOR LAW AND JUSTICE

Interest

Argument

or Immunities Clause. The Slaughterhouse, Cruikshank and Miller

Amendment.Items of Note

JFPP2010.indb 8 9/7/10 3:47 PM


Slaughterhouse

3. AMERICAN CIVIL RIGHTS UNION, LET FREEDOM RING, COMMITTEE FOR JUSTICE, FAMILY RESEARCH COUNCIL

Interest: Amici

Argument:

Slaughterhouse Cases. Slaughterhouse should not be overruled. Slaughterhouse did not involve

Slaughter-House Cases should not be overruled, as tabula

rasait chooses.

4. AMERICAN LEGISLATIVE EXCHANGE COUNCIL

Interest

federalism and individual liberty. Argument

5. APPELLANTS FROM THE NINTH CIRCUIT INCORPORATION CASE OF NORDYKE V. KING

Interest

en banccourt.

Argument The Court has fully already examined the historical

JFPP2010.indb 9 9/7/10 3:47 PM


- 10-

le Slaughterhouse

Items of Note

6. ARMS KEEPERS

Interest

Argument

Slaughterhouse

clause, then the Court should not use the avoidance doctrine to

7. BUCKEYE FIREARMS FOUNDATION AND UNITED STATES CONCEALED CARRY ASSOCIATION

Interest

Argument

JFPP2010.indb 10 9/7/10 3:47 PM


- 11-

Items of Note

8. CALGUNS FOUNDATION

Interest

Argument:

-

-tion and the Fourteenth Amendment.

Items of Note

9. CALIFORNIA DISTRICT ATTORNEYS, ET AL.

Interest Amici are district attorneys from California and Nevada

Argument

Items of Note Heller,

Heller found the Second

JFPP2010.indb 11 9/7/10 3:47 PM


- 12-

Amendment.

10. CATO INSTITUTE AND PACIFIC LEGAL FOUNDATION

Interest

freedom.Argument Slaughterhouse

history of the Fourteenth Amendment, the Slaughterhouse

Slaughterhouse would not threaten the vitality of substantive due Slaughterhouse

Items of Note

Barron v. Baltimore

11. CLAREMONT INSTITUTE CENTER FOR CONSTITUTIONAL JURISPRUDENCE

Interest

tyranny.Argument

Items of Note

JFPP2010.indb 12 9/7/10 3:47 PM


12. CONSTITUTIONAL LAW PROFESSORS

Interest: Amici

G. Calabresi, Michael Kent Curtis, Michael A. Lawrence, William

Argument

Slaughterhouse

Items of Note

Wydra, and David Gans of the Constitutional Accountability Center,

13. EAGLE FORUM EDUCATION & LEGAL DEFENSE

Interest:

liberty, and moral virtue. Argument

local tyranny as well as national tyranny. Items of Note

14. FOUNDATION FOR MORAL LAW

Interest:

education about the Constitution and the Godly foundation of this

Argument

JFPP2010.indb 13 9/7/10 3:47 PM


- 14-

Heller

15. GOLDWATER INSTITUTE AND WYOMING LIBERTY GROUP

Interest

Argument: Stare decisisSlaughterhouse

16. GUN OWNERS OF AMERICA, ET AL.

Interest: amici --

Argument

JFPP2010.indb 14 9/7/10 3:47 PM


- 15-

Items of Note

17. INSTITUTE FOR JUSTICE

Interest:

Argument

pre-existing

Immunities Clause aimed to eliminate constructive servitude by

Items of Note

18. INTERNATIONAL LAW ENFORCEMENT EDUCATORS AND TRAINERS ASSOCIATION, ET AL.

Interest: Amici

Argument

Items of Note

Heller

JFPP2010.indb 15 9/7/10 3:47 PM


- 16-

it has not even

19. JEWS FOR THE PRESERVATION OF FIREARMS OWNERSHIP

Interest

Argument

hands of a tyrant could not overcome the collective armed defensive efforts of the citizenry.

20. MARYLAND ARMS COLLECTORS’ ASSOCIATION

Interest

Argument The Fourteenth Amendment was intended

Court has said that the Second Amendment is an individual

Immunities Clause or under the Due Process Clause. Items of Note

felons or the unbalanced.

21. NATIONAL SHOOTING SPORTS FOUNDATION, INC.

Interest

Argument

survival in colonial America. The Second Amendment derives from

JFPP2010.indb 16 9/7/10 3:47 PM


- 17-

Items of Note

22. PROFESSORS OF PHILOSOPHY, CRIMINOLOGY, LAW AND OTHER FIELDS

Interest Amici

involved in this case.Argument

Items of Note

23. ROCKY MOUNTAIN GUN OWNERS AND NATIONAL ASSOCIATION OF GUN RIGHTS

Interest

Argument

JFPP2010.indb 17 9/7/10 3:47 PM


Items of Note

tyranny have historically been fundamental elements of Western law and culture, under the Duncan

24. SAFARI CLUB INTERNATIONAL

Interest

Argument

Items of Note

25. SENATORS KAY BAILEY HUTCHINSON AND JON TESTER, 56 OTHER SENATORS, AND 251 CONGRESSMEN

Interest

Argument

JFPP2010.indb 18 9/7/10 3:47 PM


Items of Note

26. STATE FIREARM ASSOCIATIONS

Interest The State Firearms Associations include over 40

Argument Dred Scott, Cruikshank

Fourteenth AmendmentItems of Note Cruikshank and Presser were written

27. STATE LEGISLATORS

Interest Amici

Argument It will do no harm to our system of federalism for

U.S. citizens.Items of Note

Heller,

JFPP2010.indb 19 9/7/10 3:47 PM


- 20-

reinforced by its own analysis, the Nordyke

28. TEXAS AND 37 OTHER STATES

Interest Amici

Argument

Items of Note

29. THE HEARTLAND INSTITUTE

Interest

Argument

crime.Items of Note

30. THE PARAGON FOUNDATION

Interest

and the continuation of rural customs and culture.

JFPP2010.indb 20 9/7/10 3:47 PM


- 21-

Argument

Heller

Items of Note

Amendment to a lower tier of constitutional value that is not worthy

31. THE RUTHERFORD INSTITUTE

Interest

Argument

Items of Note

JFPP2010.indb 21 9/7/10 3:47 PM


- 22-

32. WOMEN STATE LEGISLATORS AND ACADEMICS

Interest Amici

Argument

Items of Note

themselves effectively is not an activity or an interest, but the very

RESPONDENTS’ AMICI

1. AMERICAN CITIES, COOK COUNTY, ILLINOIS, AND POLICE CHIEFS

Interest Amici

and the Chief of Police for the City of Seattle. Each amicus is

Argument In Heller

Founders viewed to be a cornerstone of a free country—namely,

JFPP2010.indb 22 9/7/10 3:47 PM


defense situations.Items of Note

the Constitution.

2. ANTI-DEFAMATION LEAGUE

Interest

Argument

Heller.Items of Note

3. ASSOCIATION OF PROSECUTING ATTORNEYS AND DISTRICT ATTORNEYS

Interest Amici

Argument:

JFPP2010.indb 23 9/7/10 3:47 PM


- 24-

enforcement activities. Items of Note

4. BOARD OF EDUCATION OF THE CITY OF CHICAGO, ET AL.

Interest Amici

centers they serve. Argument

is in common use is not essential to ordered liberty. Even if the

different from other liberties retained by individuals because of their

Items of Note

JFPP2010.indb 24 9/7/10 3:47 PM


- 25-

5. BRIEF FOR THE VILLAGES OF WINNETKA AND SKOKIE, ILLINOIS, THE CITY OF EVANSTON, ILLINOIS, THE ILLINOIS MUNICIPAL LEAGUE, AND THE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION

Interest Amici

Argument

framers of the Fourteenth Amendment did not intend to divest states

the balance of federalism, and would burden the federal courts

6. EDUCATIONAL FUND TO STOP GUN VIOLENCE

Interest

Argument The Second Amendment should not be

Items of Note

innocent bystanders and children). The revolutionary militia was not

7. ENGLISH/EARLY AMERICAN HISTORIANS

Interest Amici

from which the Second Amendment ori

JFPP2010.indb 25 9/7/10 3:47 PM


- 26-

Argument

Heller

Items of Note

8. HISTORIANS AND LEGAL SCHOLARS

Interest Amici

C. Thomas III. Argument

Heller is fundamental to our scheme of ordered liberty, the Court will be aided by an examination of the historical context. The Court should examine the history

individual and collective self defense, the rise of volunteer militias,

Hellerordered liberty.

Items of Note

9. LAW PROFESSOR AND STUDENTS

Interest Amicistudents from an Ohio State Law School seminar on the Second

JFPP2010.indb 26 9/7/10 3:47 PM


- 27-

Argument

Items of Note

10. OAK PARK CITIZENS COMMITTEE FOR HANDGUN CONTROL

Interest Amicus

called by the board. Argument

Items of Note

JFPP2010.indb 27 9/7/10 3:47 PM


11. ORGANIZATIONS COMMITTED TO PROTECTING THE PUBLIC’S HEALTH, SAFETY, AND WELL-BEING

Interest Amici

across the country.Argument

children and adolescents.Items of Note

12. PROFESSORS OF CRIMINAL JUSTICE

Interest Amici

Argument

Amici

ban.Items of Note:

safer in their homes.

JFPP2010.indb 28 9/7/10 3:47 PM


13. REPRESENTATIVES CAROLYN MCCARTHY, MIKE QUIGLEY, AND 53 OTHER MEMBERS OF CONGRESS

Interest Amici

Argument The Second Amendment has never been

Items of Note

14. STATES OF ILLINOIS, MARYLAND, AND NEW JERSEY

Interest

Argument The history of the Second and Fourteenth

the hands of federal courts, which would have to address a host

JFPP2010.indb 29 9/7/10 3:47 PM


reliance to the contrary. Items of Note

Heller indicated

15. 34 PROFESSIONAL HISTORIANS AND LEGAL HISTORIANS

Interest Amici

constitutional history.Argument

Fourteenth Amendment did not reduce this authority. For t

believed that the Fourteenth Amendment barred such forms of

16. UNITED STATES CONFERENCE OF MAYORS

Interest

Argument

to the ability of cities to control violent crime. The Fourteenth

JFPP2010.indb 30 9/7/10 3:47 PM


th

Items of Note

Heller th

AMICI IN SUPPORT OF NEITHER PARTY

1. NAACP LEGAL DEFENSE & EDUCATION FUND

Interest

Argument

2. BRADY CENTER TO PREVENT GUN VIOLENCE, INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE, INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, AND NATIONAL BLACK POLICE ASSOCIATION

Interest Amici

Argument

JFPP2010.indb 31 9/7/10 3:47 PM


to be reviewed with deference. Even fundamental constitutional

t

Items of Note

laws.

JFPP2010.indb 32 9/7/10 3:47 PM

In TheSupreme Court of the United States

OTIS COLLEEN


Petitioners,

v.

CITY OF CHICAGO, et all,

On Writ Of Certiorari To The

United States Court Of Appeals

For The Seventh Circuit

PETITIONERS’ BRIEF

QUESTION PRESENTED

PARTIES TO THE PROCEEDINGS

Petitioners Otis McDonald, Adam Orlov, Colleen Lawson, Da-vid Lawson, Second Amendment Foundation, Inc. and Illinois State

-

M. Daley, in the United States District Court for the Northern Dis-

JFPP2010.indb 33 9/7/10 3:47 PM


-

The three cases were related, but not consolidated, in the Dis-

STATEMENT OF THE CASE

--

District of Co-lumbia v. Heller

-

--

materials. Id.

Id.

-

JFPP2010.indb 34 9/7/10 3:47 PM


-

-

from ninety days to six months. Id.

-

-

-

-

-

-

District Court advised that the case should be resolved on a mo--

Quilici v. Village of Morton Grove Quilici fol-lowed Presser v. Illinois

-ties Clause. Quilici

-

JFPP2010.indb 35 9/7/10 3:47 PM


Quilicianalysis.

--

-United States v. Cruikshank

Presser, supra, and Miller v. Texas-

SUMMARY OF ARGUMENT

-dividual liberty. Should this Court do what the lower courts did

--

-

-

-

-

JFPP2010.indb 36 9/7/10 3:47 PM


-

--

-

v. Coryell,

and the

the Constitution in The Slaughter-House CasesSlaughter-House -

Slaughter-House

contrary command. SlaughterHouse -

which the States could not ordinarily interfere even had they the will

those by whom the instrument was framed and of those by whom it

SlaughterHouseAs mandated by SlaughterHouse

Cruikshank, Presser v. Illinois

cf. Miller

JFPP2010.indb 37 9/7/10 3:47 PM


SlaughterHouse -

SlaughterHouse

--

-

the States. -

Duncan v. Louisiana

id. at 150 n.14. Duncan

-

ARGUMENT

I. THE RIGHT TO KEEP AND BEAR ARMS IS AMONG THE PRIVILEGES OR IMMUNITIES OF AMERICAN CITIZENSHIP THAT STATES MAY NOT ABRIDGE.

-

-District of Columbia v. Heller -

-Id.

-

JFPP2010.indb 38 9/7/10 3:47 PM


Saenz v. Roe, 1

their intent.

The Fourteenth Amendment was understood and intended to

victory. The Thirteenth Amendment ended slavery, but did not im-

Heller

Political His-tory of the United States of America During the Period of Reconstruction

CHRISTIAN RECORDER (AFRICAN METHODIST EPISCO-

JFPP2010.indb 39 9/7/10 3:47 PM


- 40-

But the South could not remain forever under military rule, and

-

Doc. No. 70, id.

-

-

Presidential vetoes and Southern resistance fueled doubts about -

Dred Scott v. SandfordBarron ex rel. Tiernan

v. Mayor of Baltimore

JFPP2010.indb 40 9/7/10 3:47 PM


- 41-

Dred ScottDred

Scottcitizens. Cf. Cooper v. Mayor of Savannah

Aldridge v. Commonwealth

citizens of other states.2

-

Decision of Chief Justice Handy, Declaring the Civil Rights Bill Unconstitu-tional,

The Fourteenth Amendment left unaddressed the content of -

-ment to the Constitution should be read in a ‘sense most obvious to

Adamson v. California,

overruled on other grounds by Malloy v. Hogan-

JFPP2010.indb 41 9/7/10 3:47 PM


- 42-

Michael Curtis, Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States

-

-Id.

-Id

--

zens by the States. THE FEDERALIST No. 42 (James Madison).

, 6 F. Cas. at 551.

JFPP2010.indb 42 9/7/10 3:47 PM


Id.

Id. at 552.

See generally -

The Antislavery and Abolitionist Background of John A. Bingham

-

states searched the mails for abolitionist sermons to burn, offered

Id. at 241. -

JFPP2010.indb 43 9/7/10 3:47 PM


- 44-

Was it not intended to secure to all the citizens, in each state,

Unconstitutional Laws of Ohio

-

The Claim of Property in Man, THE

Joel Tiffany, A TREATISE ON THE UNCONSTITUTIONAL-

Id.

-

Dred Scott

the privileges and immunities of citizens

molestation, unless they committed some violation of law

JFPP2010.indb 44 9/7/10 3:47 PM


- 45-

and to keep and carry arms wherever they went.

Dred ScottAbolitionists found that Dred Scott

-

privileges embraced in this term,

is of these privileges and rights

that very Dred Scott

the United States . . . Those rights are to bear arms . . . and various

Who Are American Citizens?

and immunities of the Constitution extend. Under that

-

-

JFPP2010.indb 45 9/7/10 3:47 PM


- 46-

id. at

id.id.

secured by the constitution. . . . Should not then, the freedmen have and enjoy the same constitutional right to bear arms in defence of themselves, that is enjoyed by the citizen? It is a natural and personal right—the right of self-preservation . . .

the freedmen can have no adequate protection against acts of violence unless they are allowed the same privilege.

-

constitution, are citizens by birth of the several States, and therefore are citizens of the United States, and as such are entitled to all the privileges and immunities of citizens of the United States, amongst which are the rights of life and liberty and property, and

Id.

JFPP2010.indb 46 9/7/10 3:47 PM


- 47-

-

humblest citizen of the United States in the free exercise of any one

-Id.

-

-

-

-

them secured by the second section of the fourth article of

amendments of the Constitution . . .

stated,

have under the laws of the country are embraced under the

JFPP2010.indb 47 9/7/10 3:47 PM


and immunities.

-litionists, Dred Scott

amendments.

an enforcement mechanism.

Barron decision,

Adamson

-

-

JFPP2010.indb 48 9/7/10 3:47 PM


-

Id.-

Id. -

by the Act to

and immunities of citizens were habitually and systematically

sue, the writ of habeas corpusId.

Id. at 1266.

from the enactment of this bill into a law. Id.

And were it not for Dred Scott and Barron--

Id.

JFPP2010.indb 49 9/7/10 3:47 PM


- 50-

Barron -

Second Amendment Incorporation Through the Privileges or Immunities and Due Process Clauses

of which are absolutely essential to American nationality.

be enforced. Id.

I have advocated here an amendment which would arm

Id. -id.

Id.

-

JFPP2010.indb 50 9/7/10 3:47 PM


- 51-

Barron . . . I Lessee of

Livingston vs. Moore . . . .

Id. Barron Livingston v. Moore

Barron di--

ex post facto law, or

in the Constitution . . . Barron

supra, at 164.

-Id.

-

Id.

JFPP2010.indb 51 9/7/10 3:47 PM


- 52-

Did the Fourteenth Amendment Incorporate the Bill of Rights Against States?

full-well what the Framers intended to achieve, and shared their un-

-New York Herald

Original Popular Understanding ,

The Herald Chicago Tribune, carried on their front

-munities. Id. at 712 (citations omitted).

New York Times, Daily National Intelligencer

Ft. Wayne’s Daily Gazette, and the Bangor Daily Whig & Courier. Id.

Cadiz Republican,

Richard Aynes, On Misreading John Bingham and the Fourteenth Amend-ment 4

--

JFPP2010.indb 52 9/7/10 3:47 PM


New York Times, New York Herald, Philadelphia Inquirer, National Daily Intel-ligencer,

-

REPORT OF THE JOINT COMMITTEE ON RECONSTRUC-

Adamson --

wrote the New York Times

citizen of the United States, everywhere within the national full and complete protection

to keep and bear arms in his own defence, to be tried and sustained in every way as an

JFPP2010.indb 53 9/7/10 3:47 PM


- 54-

with which States cannot constitutionally interfere. The National Question: The Constitutional Amendments—Na-

tional Citizenship

The Nation

to the liberty of the individual inhabitant the will of the nation as its Pomeroy’s Constitutional Law, THE

-

5

---

-

--

The Political Situation: Letter from Secretary Browning, N.Y. TIMES, Oct.

JFPP2010.indb 54 9/7/10 3:47 PM


- 55-

The New York Times

Mr. Browning’s Letter and Judge Handy’s Decisionsee discussion, supra, at 14.

-

Id. Wash Lowesupra

-

Id. -

have not hitherto been safe in the South, for want of

white men have for a series of years been driven out of the

of Southern slaveholders . . . . We are determined that these

Cincinnati Commercial

to it. He claimed that the war was not over until every man

Philadelphia Inquirer-

JFPP2010.indb 55 9/7/10 3:47 PM


- 56-

Id.

-

Pomeroy, AN INTRODUCTION TO THE CONSTITUTIONAL Barron

id.

Id. at 151.

-rar, MANUAL OF THE CONSTITUTION OF THE UNITED

--

-

Israel Andrews, MANUAL OF THE CONSTITUTION OF THE

JFPP2010.indb 56 9/7/10 3:47 PM


- 57-

-

-cated, and never denied.

II. THE SLAUGHTERHOUSE CASES, UNITED STATES V. CRUIKSHANK, AND PRESSER V. ILLINOIS MUST BE OVERRULED.

-

Palko v. Connecticut, overruled by Benton v. Maryland

The error should have been self-evident. But Palko described ac-The SlaughterHouse Cases and

Cruikshank and Presser. These cases estab-

to the contrary. One notable scholar described SlaughterHouse

-

-

the Constitution.

Erroneous.

-

-Live-Stock Dealers’ &

Butchers’ Ass’n v. Crescent City Live-Stock Landing & Slaughter-House Co.,

-

JFPP2010.indb 57 9/7/10 3:47 PM


United States v. Hall, supra Hall held that the

-

Hall

SlaughterHouse-

SlaughterHouse

Id.

line with , SlaughterHouse

Id. -

Id. at 77. Incorrect-ly, SlaughterHouse

SlaughterHouse -id. at

-

Id. Slaughter-House -

Id.SlaughterHouse

-lems.

JFPP2010.indb 58 9/7/10 3:47 PM


Three years later, Cruikshank -

Slaughter-House, this -

Cruikshank

of the United States. In fact, it is, and always has been, one of

existence. Id.

Id. at Presser Presser v. Illinois, 116 U.S. 252, 265

Cruikshank

SlaughterHouse, -

Cruikshank decision, a former Con-

election.

Aynes, supra --

brated it. Id.-

UNWRITTEN CONSTITUTION OF THE UNITED STATES

Cruikshank

intentions which was new, and was not calculated to allay

JFPP2010.indb 59 9/7/10 3:47 PM


- 60-

Aynes, supra Appendix, In Memoriam, Morrison Remick Waite, L.L.D.

The SlaughterHouse

views of men have matured, it is seen on a survey of all the decisions considered as a body, that the value of the Court

Today the Civil War and the Reconstruction Amendments are -

SlaughterHouse

SlaughterHouseSubstance and

Method in the Year 2000SlaughterHouse

SlaughterHouse

chaos of Reconstruction demanded that the States be forced to re-

JFPP2010.indb 60 9/7/10 3:47 PM


- 61-

Barron -

the amendment would defeat

General Government. Id. at 2500.

supraId.

col. 1.

-SlaughterHouse reduced the

-

SlaughterHouse

JFPP2010.indb 61 9/7/10 3:47 PM


- 62-

-Id.

2. SlaughterHouse Contradicts History.

(the SlaughterHouse Cases

William Royall, The Fourteenth Amendment: The Slaughter-House Cases, 4

SlaughterHouse -

SlaughterHouse found it

own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which

SlaughterHouseSlaughterHouse -

Selective Draft Law CasesSlaughterHouse

JFPP2010.indb 62 9/7/10 3:47 PM


citizen is a citizen of some State or Territory, and, as such, under an

other sense, that we are citizens of the United States.

-

rationale, Slaughter-House Rescuing the Fourteenth Amendment Privileges or Immunities Clause: How “Attrition of Parliamentary Processes” Begat Accidental Ambiguity;; How Ambiguity Begat SlaughterHouse -

Slaugh-terHouse

3. SlaughterHouse Rests on a Misquotation, Reflecting a Premise Rejected by the Amendment’s Framers.

SlaughterHouse-

in of the

SlaughterHouse

avail. Id.SlaughterHouse

-of the United

JFPP2010.indb 63 9/7/10 3:47 PM


- 64-

States

SlaughterHouse claims to exist in Arti-

SlaughterHouse --

section of the amendment they have submitted for the consider-citizens of the

several states . . .

Id. Even had it existed, SlaughterHouse

Framers.

4. SlaughterHouse --

-

Id. at 1757 (Statement of Sen. Trum-bull). In -

, 6 F. Cas. at 551.

U.S.

JFPP2010.indb 64 9/7/10 3:47 PM


- 65-

Term Limits, Inc. v. Thornton

SlaughterHouse -

-SlaughterHouse

Fourteenth Amendment, so the amendment would not affect

under state control was shameful. Lucas Powe, Jr., THE SUPREME COURT AND THE AMERI-

B. Stare Decisis Does Not Secure the SlaughterHouse Line.

stare decisis Slaughter-House

-

Planned Parenthood of Southeastern Pa. v. CaseyPetitioners submit this to be the case with SlaughterHouse and its

SlaughterHouse

JFPP2010.indb 65 9/7/10 3:47 PM


- 66-

or immunity whatever of one who was a citizen of the United

sense can be discovered that it can be forced to bear.

-

must

Payne v. TennesseeStare decisis

Casey

be easily corrected by the coordinate branches. Stare decisis,

disturbed by the courts. Payne

stare decisis Guardians Ass’n v. Civil Serv. Comm’n -

Payne(citation omitted).

Smith v. Allwright6

--

JFPP2010.indb 66 9/7/10 3:47 PM


- 67-

framers when they added the Amendment to our constitutional Malloy

Crawford v. Washington(2004).

Beyond cases such as the SlaughterHouse-

come to be seen so differently, as to have robbed the old rule

Casey

The SlaughterHouse doctrine fails each of these factors.

1. SlaughterHouse Is Not Truly Practical.

The SlaughterHouse

-

Saenz-

-

-

JFPP2010.indb 67 9/7/10 3:47 PM


The SlaughterHouse -

at issue in Slaughter-House

excessive. SlaughterHouse

Cruikshank -

States.

Slaughter-House and Cruikshank re-stored only some

-

SlaughterHouse doctrine. Americans are in-

-SlaughterHouse

-

Id.

-

JFPP2010.indb 68 9/7/10 3:47 PM


-

-

See Graham v. Rich-ardson

-

Patsone v. PennsylvaniaSlaughterHouse -

Toll v. Moreno

-

is true. Without contradiction, Senator Howard offered that the

and to all persons who may happen to be within their jurisdiction

Id.

and the inborn rights of every person within its jurisdiction

Id. -

supra, at 25.

SlaughterHouse The third Casey Slaugh-

terHouse. The SlaughterHouse

JFPP2010.indb 69 9/7/10 3:47 PM


- 70-

-Compare,

e.g., United States v. Virginia with SlaughterHouse,

or on account of their race, will ever be held to come within the

---

SlaughterHouse “central rule a doctrinal Casey

SlaughterHouse, today remain

See, e.g., Supreme Court of New Hampshire v. Piper

-tion.

SlaughterHouse Untenable.

CaseyThe facts had never been examined by this Court at all. Slaughter-House

-

III. THE SECOND AMENDMENT RIGHT TO KEEP AND BEAR ARMS IS INCORPORATED AS AGAINST THE STATES BY THE FOURTEENTH AMENDMENT’S DUE PROCESS CLAUSE.

JFPP2010.indb 70 9/7/10 3:47 PM


- 71-

It is now well-established that the Due Process Clause has a -

An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amend-ment

Sanford Levinson, The Embarrassing Second Amendment

Palko-

Duncan v. Louisianaid., 150 n.14. Duncan

-Heller

JFPP2010.indb 71 9/7/10 3:47 PM


- 72-

-Mallock v. Eastly

Heller

Nordyke v. King reh’g en banc granted

There should be no need to recite the exhaustive historical evi-dence considered in Heller -

Heller,

ON THE ADOPTION OF THE FEDERAL CONSTITUTION

-id.

Id.

State Constitutional Rights to Keep and Bear Arms

Id. -

See, e.g., Kellogg v. City of Gary State ex rel. City of Princeton v. Buckner State v. Delgado,

Liberty.

JFPP2010.indb 72 9/7/10 3:47 PM


Heller

-Id.

See Clayton Cramer, Nicholas This Right is Not Allowed by Gov-

ernments that are Afraid of the People”: The Public Meaning of the Second , 17 Geo. Ma-

-Youngberg

v. Romeo -

all restraint or interference of others, unless by clear and

Cruzan v. Dir., Mo. Dep. of Health-

cal care. Id. see also Eisenstadt v. Baird-

Lawrence v. Texas,

Rochin v. California

Casey, 505

-

Casey -

than

JFPP2010.indb 73 9/7/10 3:47 PM


- 74-

the right to keep and bear arms

Id. Poe v. Ullman

narrowly as to exclude one of its more obvious attributes.

Griswold v. Connecticut

Roe v. Wade, 410 U.S. Griswold liberty

Caseyid.

-

as militia. Heller

U.S. Const. amend. II. By its own terms, the Second Amendment

Heller

CONCLUSION

ALAN GURA* *Counsel of Record

JFPP2010.indb 74 9/7/10 3:47 PM


- 75-

NOTES

-text.

See A Fact, THE LIB-

§2).

Id.

the thousands. Id. Reconstruction: The Debate in the Senate, BOSTON DAILY

-

United States v. Miller

see cases collected in Payne Smith,Burnet v. Coronado Oil & Gas Co.,

JFPP2010.indb 75 9/7/10 3:47 PM

- 76-

In TheSupreme Court of the United States

OTIS COLLEEN


Petitioners,v.

CITY OF CHICAGO,

On Writ Of Certiorari To The

United States Court Of Appeals

For The Seventh Circuit

RESPONDENTS’ BRIEF

STATEMENT OF THE CASE

-

-

Id

JFPP2010.indb 76 9/7/10 3:47 PM


- 77-

id. -nually (id

Id

-

-

-

-1 McDonald and the two NRA

-

in all three cases, on the basis that the Second Amendment does not E.g

(id. at 2). The court further reasoned that the outcome of this case --

Id. at 5-6. The

JFPP2010.indb 77 9/7/10 3:47 PM


Id -

Slaughter-House

Id. at 5.

SUMMARY OF ARGUMENT

--

--

-

-

-

-

-

JFPP2010.indb 78 9/7/10 3:47 PM


-

-

District of Columbia v. Heller,

-

of whether they are useful for self-defense.

-

-

Slaughter-House Cases

stare decisis factors

-

--

JFPP2010.indb 79 9/7/10 3:47 PM


Stare decisis Even reviewed de novo -

--

Slaughter-House itself was

-

Treatise writers of the era were similarly divided.

States because of concern over the disarmament of freedmen af-

-

ARGUMENT

I. THE DUE PROCESS CLAUSE DOES NOT INCORPORATE THE SECOND AMEND MENT RIGHT TO KEEP AND BEAR ARMS.

Barron v. Mayor of Baltimore,

JFPP2010.indb 80 9/7/10 3:47 PM


Vir-ginia v. Moore United States v. Balsys, 524

Palko v. Connecti cut, Benton v.

Maryland Thornhill v. Alabama -

Idsee also Schneider v. New Jersey -

Mapp v. OhioWolf v. Colorado

-

Palko,

Chi-cago, B. & Q. R.R. v. City of Chicago

Duncan v. Louisiana

-Malloy v. Hogan -

Chicago Twining v. New Jersey

Malloy. Cf. Danforth v. Minnesota

-Palko).2

--

JFPP2010.indb 81 9/7/10 3:47 PM


in a system of ordered liberty. See, e.g., DuncanPointer v. Texas Gideon v. Wainwright

been embodied in federal and state law (e.g., Duncane.g., Klopfer v. North Carolina,

-

-

-

more fundamental, even if conditions in two States may be similar,

New State Ice Co. v. Liebmann

-

--

-

-

or the other. See United States v. Morrison

JFPP2010.indb 82 9/7/10 3:47 PM


United States v. Lopez

Lawrence v. Texas

Wolf, Mapp).

Intrude On, Ordered Liberty.

-

--

-

-

JFPP2010.indb 83 9/7/10 3:47 PM


-

-armann, Every Handgun is Aimed at You: The Case for Banning Handguns

et al., Bureau of Justice Statistics, Homicide Trends in the United States (available

-supra, at 177 (more than two out of three

-cially in urban environments. See id

crimes (e.g -

National Crime Victimization Survey, Weapon Use and Violent Crime -

See Centers for Disease Control and Prevention, WONDER On--

Amicus Curiae

as Amici Curiae of Education, et al., as Amici Curiae

4 That -

JFPP2010.indb 84 9/7/10 3:47 PM


Heller-

-ibid.

--

ate the conditions necessary to foster ordered liberty, rather than -

e.g., Lawrence Rosenthal, Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incor-poration, Well-Regulated Militias, and Criminal Street Gangs, 41 Urb. Law-

et al., Underground Gun Markets

et al., Effects of Restrictive Licensing of Handguns on Homicide and Suicide in the District of Columbia,

-

Amicus Curiae

Amicus Curiae Criminal Justice as Amici Curiae

-

-

JFPP2010.indb 85 9/7/10 3:47 PM


Rosenthal, Second Amendment Plumbing, supra

Second Amendment becomes the enemy of ordered liberty, not its Id

-5 But incor-

-fore to foster, not threaten, a system of ordered liberty. Insofar as

all -

at least some local conditions. Heller -

did not directly address the status under the Second Amendment any

6 -7

Heller id.

-

-

In the Matter of Atkinson-

sion in the streets, some what reminiscent of frontier days, would not -

JFPP2010.indb 86 9/7/10 3:47 PM


-infra.10

-Heller. See, e.g., United States v.

SkoienHel ler -

11 Costly Second Amendment

death.

-

law as does this country, and each should be seen as a country in -

Firearms Law Guidance to the Police -

-

id

JFPP2010.indb 87 9/7/10 3:47 PM


-

-

-

--

-

sources, but which nonetheless would reasonably be seen as coun-

IdSee also id

-

The Court in Heller United

JFPP2010.indb 88 9/7/10 3:47 PM


States v. Miller

-

-

Heller -

home under the Second Amendment (id -id

1. Interest balancing by the States

by the States.12

-Scrutiniz-

ing the Second AmendmentBrief of the Brady Center, et al., as Amici Curiae -

e.g., Benjamin v. Bailey

Robertson v. City and County of Denver -

supra -

Ibid. See also, e.g., State v. McAdams, 714

-

JFPP2010.indb 89 9/7/10 3:47 PM


-

su-pra, at 715.

-

-

e.g -State and Local Laws

-

-supra

2. Weapons bans by the States

i.e Heller-

total ban

supra, at 717 (cita-tions omitted).14

Kalodimos v. Village of Morton Grove

Id.

-Ibid City

of Cleveland v. Turner

JFPP2010.indb 90 9/7/10 3:47 PM


-

Id. at *5. See also State v. Bolin

supra, at

Benjaminnot -

-Robertson

Arnold v. City of Cleveland-

Carson v. State

all of every description

City of Cincinnati v. LanganArnold).15

-

Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Ori-gins of Gun Control in America

idibid

-Murder in New York City

the nineteenth century than they are today, because they served as

-

Cornell, supraA Well Regulated Right: The Early American Origins of Gun Control

JFPP2010.indb 91 9/7/10 3:47 PM


Aymette v. StateState v. Buzzard

Day v. State,

English v. State

Andrews v. State id.

Amici Curiae in 16

--

-

The Cowboy Subculture, in Guns in America: A Reader (Jan E. Dizard, et al., The Cattle Towns

JFPP2010.indb 92 9/7/10 3:47 PM


Duncansupra

-Duncan

-

-

17 That history is not deter-

supra

e.g., Malloy Minneapolis & St. Louis R.R. v. Bombolis -

Hurtado v. California-

1. This Court in Heller

JFPP2010.indb 93 9/7/10 3:47 PM


Id

Heller-

-

Id

-Ibid

central component Ibid

Ibid.

-

e.g., Duncan Klopfer, -

e.g., Schneider-

JFPP2010.indb 94 9/7/10 3:47 PM


Heller not --

-

id-

Heller

id

-

essential. See The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins The Second Amend ment: The Highest Stage of Originalism

20

-

Heller

JFPP2010.indb 95 9/7/10 3:47 PM


-Id -

idMiller

id Treatise on Constitutional Limitations

common use that would undoubtedly be useful for self-defense (e.g., id

-

defense are not at issue.

-

-

Heller

-

JFPP2010.indb 96 9/7/10 3:47 PM


-fense (e.g., Brown v. United States

e.g., Martin v. Ohio

has ever tried to elimi nate self-defense as a defense in the criminal law, the Court has never had occasion to address whether or how

defense in the criminal law if the occasion arose (cf. Montana v. Egel-hoff

defense doctrine and the wide variation in its incidents in various e.g., Wayne R. LaFave, Substantive Criminal Law §

--

-

21

-

or even the ability to have tools necessary to effectuate any such

22

-

JFPP2010.indb 97 9/7/10 3:47 PM


supra The Concealed Handgun Manual: How to Choose, Carry, and Shoot a Gun in Self Defense

-

Unintended Consequences: Pro-Handgun Experts Prove that Handguns are a Dangerous Choice for Self-Defense -cont.htm).

-

-

-

Hurtado-

Minneapolis-

JFPP2010.indb 98 9/7/10 3:47 PM


in the Second Amendment. Finally, the Second Amendment is different from the other

-

-

-

II. THE COURT SHOULD ADHERE TO PRECEDENT REJECTING INCORPORA TION UNDER THE PRIVILEGES OR IM MUNITIES CLAUSE.

-

stare decisis considerations that

-

-

Slaughter-House Cases,

JFPP2010.indb 99 9/7/10 3:47 PM


- 100-

-

-where. Id.

-Id

those derived from other sources.

-

Slaughter-HouseCrandall v. Nevada

also included, inter alia

States can, of his own volition, become a citizen of any State of the Union by a Slaughter-House

national citizen-Barron state

id. at 76.

alter that situation. Slaughter-House,

-

United States v. Cruik shank

-Id.

In Presser v. Illinois

Id. at 266-67.

JFPP2010.indb 100 9/7/10 3:47 PM


- 101-

Slaughter-House-

Maxwell v. Dow

in crimi nal cases. See id. -der Slaughter-House

Id. . Similarly, in Twining

-

-id. In re Kemmler

-Walker v. Sauvinet

ment). Finally, in Adamson v. California

id. In those cases and afterwards, the Court has relied on the Due

Maxwell in Williams v. Florida, Adamson and

Twining in Malloy

Stare DecisisAdherence To Settled Precedent In This Case.

Petitioners admit that Slaughter-House

overrule it and the many cases that have relied on it (Pet. Br. 42), and

-

id. Slaughter-House and

JFPP2010.indb 101 9/7/10 3:47 PM


- 102-

-

the views of the current Members of this Court for the consid-

-

Planned Parenthood v. Casey

Payne v. Tennessee stare decisis is not an ‘inexo-

Casey, 505 U.S. -

e.g., Montejo v. Louisiana Casey, 505 Lawrence

Bowers Hardwick,

stare decisis Slaughter-House

1. Workability -

-

Saenz v. Roe

Slaughter-House situation in constitutional law. It would immediately call into doubt

JFPP2010.indb 102 9/7/10 3:47 PM


-

but not

on which the Court could determine that the Second Amend ment,

-

person

citizens

See, e.g., First National Bank v. BellottiWong Wing v. United States

-ties Clause. See, e.g., Grosjean v. American Press Co.

West ern Turf Association v. Greenbergsee also Paul v. Virginia -

Metropoli tan Life Insurance Co. v. Ward

-

-

the Due Process Clause. See Saenz

Slaughter-House

-

JFPP2010.indb 103 9/7/10 3:47 PM


- 104-

-

-

Ibid.

-

-

e.g., Pet. --

has -

-

only 2. The antiquity of the precedent. Slaughter-House

Montejo id-

JFPP2010.indb 104 9/7/10 3:47 PM


- 105-

Reliance stare decisis Pearson v. Callahan

-e.g., Osborn v. Haley

Campbell v. Louisiana,

24

all

Slaughter-House

-

not to be necessary or fundamental. Those reliance interests counsel Slaughter-House

4. Erosion of legal and factual premises. There has been no erosion of the foundation of Slaughter-House. No related areas of law have

Slaughter-House Quill Corp. v. North Dakota

Agostini v. Felton

State Oil Co. v. Khanin this area has been consistent.

Slaughter-House is an anachronism because

Slaughter-House that the

true (Pet. Br. 64). But Slaughter-House id. at 64-65)

JFPP2010.indb 105 9/7/10 3:47 PM


- 106-

-

Immunities Clause an anachronism. -

Slaughter-House -torical record was scoured in Adamson

-

id. Court in Adamson(see id. id. at

De Novo, The Historical Record Provides No

Heller --

Id.

-

JFPP2010.indb 106 9/7/10 3:47 PM


- 107-

Barron -

Lessee of Livingston v. Moore,

-

a. Text.

--

Clause would have this effect, they chose an indirect and uncertain way to do so.

-fully contrasted with other consti tutional amendments that have

ers claim the Clause was intended to overrule Barron. But where a

JFPP2010.indb 107 9/7/10 3:47 PM


Chisholm v. Georgia e.g., Alden v. Maine, 527 U.S.

;; Atascadero State Hospital v. Scanlon, -

Pollock v. Farmers’ Loan & Trust, Brushaber v. Union Pac. R.

Pollock

Pollock -

Slaughter-House Dred Scott v. Sandford

Dred Scott all persons born

-

-

-munities Clause, and the failure to use any of the numerous more

JFPP2010.indb 108 9/7/10 3:47 PM


federal Constitution. Id. -

III, Newspapers and the Fourteenth Amendment: What did the American -

-

(Noah Webster, An American Dictionary of the English Language -

(id.

id.

--

-ously did not

Barron

b. Judicial decisions. -

JFPP2010.indb 109 9/7/10 3:47 PM


- 110-

-Heller

Barron

The Riddle of the Fourteenth Amend-ment: A Response to Professor Wildenthal

-

Twitchell v. Pennsylvania

indictment, based on Barronor Immunities Clause to undo Barron, surely this Court and Twitch-

Riddle, supra, at Twitchell, two lower court

United States v. Crosby, 25 F. Cas. 701, 704 Rowan v. State

Then came Slaughter-House-

id. 25 Slaughter-House received mixed reviews. As Charles War-

ren observed, Slaughter-House -

The Supreme Court in United States History

--

The Unwritten Constitution of the United States

id. at 102). In the

JFPP2010.indb 110 9/7/10 3:47 PM


- 111-

Slaughter-House was

The Scope of the Thirteenth and Fourteenth Amendments

supra-

Slaughter-House. But in Edwards v. Elliott

-Cruikshank held that the Second Amend-

The Reconstruction-era Court that decided Slaughter-House, Crui-kshank, and Edwards -

Lawrence Rosenthal, The New Originalism Meets the Fourteenth Amend-ment: Orig inal Public Meaning and the Problem of Incorpora tion -

Slaughter-House id

also Morrison

JFPP2010.indb 111 9/7/10 3:47 PM


- 112-

-SlaughterHouse

the Justices in Slaughter-House

stare decisis

c. Congressional record

Reconstruction: Slaughter-

House inter alia, that southern States had

respect to race or color, or previous condition of slavery

-

States citizens

condition of slavery or involuntary ser vitude . . . shall have the same

of all laws as is

enjoyed by white persons.

JFPP2010.indb 112 9/7/10 3:47 PM


ment. See, e.g.id.

id.

id.

-supra

Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J.

Id. -

equally Id.

-

id.

JFPP2010.indb 113 9/7/10 3:47 PM


- 114-

Ibid.

-

Second Amendment Plumbing, supra

-man, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding

Id. e.g., id.

id. id. id. id. id. id. at

id. id. -id.

Act would not have understood it to achieve the entirely distinct

-

-

Id.

, 6 F. Cas. at 551-52. See also Paul -

JFPP2010.indb 114 9/7/10 3:47 PM


- 115-

did

--

stood that Cor-

--

Id.

Ibid. -

Id.

Id.

Clause. See Thomas, Riddle, supra

--

The Fourteenth Amend-ment: From Political Principle to Judicial Doctrine

Barron-contrarian view that States -

tutional amendment was necessary only for federal enforcement of

JFPP2010.indb 115 9/7/10 3:47 PM


- 116-

Id. at id.

-

-

-nals. Only two months earlier, he issued a contradictory statement

-

supraNewspapers, supra, at 12). See

Government by Judi ciary: The Transformation of the Fourteenth Amend ment

-derstanding: The Case of the Fourteenth Amendment

-

-e.g.

id. at 1054

id. -id. -

-

JFPP2010.indb 116 9/7/10 3:47 PM


- 117-

Paul-

The Reconstruction Congress, 75 U.

--

Heller,

Riddle, supra

entire Nationalizing the Bill of Rights: Revisiting the Original Under standing of the Fourteenth Amendment

d.

-

James E. Bond, The Original Understanding of the Fourteenth Amendment in Illinois, Ohio, and Pennsylvania

-Id. at 450. In

-

No Easy Walk to Freedom: Recon struction and

-

JFPP2010.indb 117 9/7/10 3:47 PM


The Adop-tion of the Fourteenth Amendment

-

Barron -Newspapers, supra, at 4.

-

-

equal rights and protection to all

The National Question: The Constitutional Amendments—National Citizenship, N.Y. Times, Nov. 10,

-

The Political Situation: Letter from Secretary Browning, N.Y. Times, Oct. 24,

Mr. Browning’s Letter and Judge Handy’s Decision, N.Y.

supra -

Id. at -

Another Amendment to the Constitu-

JFPP2010.indb 118 9/7/10 3:47 PM


tion

See, e.g., The Thirty-Ninth Congress The Reconstruction Committee’s Report

supra Close of Session of Congress–the General Result, N.Y.

into conformity. See Fairman, supra-

See Thomas, Riddle, supra The Fourteenth Amendment, the Bill of Rights, and the (First) Criminal Procedure Revolution,

e. Treatises ---

tise (Heller

A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union Constitu-tional Limitations Barron

-Nationalizing the Bill of Rights: Scholar ship

JFPP2010.indb 119 9/7/10 3:47 PM


- 120-

--

Commentaries on the Constitution of the United States

Some scholars did embrace the notion that the Fourteenth

Commentaries on the Law of Criminal Proce dure

A Treatise on the Criminal Law of the United States: Principles, Pleading and Evidence

id.

an article that cited Barron and said the Second Amendment does not The Right to Keep and Bear Arms for Public and

2. Concerns about discriminatory dis armament do

-

Crui-kshank -

Barron for the Sec-

JFPP2010.indb 120 9/7/10 3:47 PM


- 121-

-teenth Amendment than exists for any other element of the Bill of

Ibid.

--

id.

id.

-

Id. at 474.

but those comments, too, referred to discriminatory disarmament. See, e.g.

-id.

-

-

JFPP2010.indb 121 9/7/10 3:47 PM


- 122-

-ton, The Limits of Incorporation: Violence, Gun Rights, and Gun Regula-tion in the Reconstruction South

-

The Political History of the United States of America During the Period of Reconstruc-tion

su-pra

that state militias were needed to stabilize a disorderly South, but

supra

id. at 622.

-

Heller holds the Sec-

e.g.

JFPP2010.indb 122 9/7/10 3:47 PM


and revolvers. See, e.g., Andrews EnglishHill v. State Fife v. State

State v. Workman--

-

supra

discrimination tailored to discri minatory disarmament.

Slaughter-House

-

Slaughter-House demonstrates a wide array of views, from within the halls of Con-

-26

Under similar circumstances, the Court in Brown v. Board of Education

Plessy v. Ferguson(Brown

-

JFPP2010.indb 123 9/7/10 3:47 PM


- 124-

(id.

Ibid. And recently, in Boumedienne v. United States -

-Id.

-

27

CONCLUSION

HANS GERMANN, Mayer Brown LLPRANJIT HAKIMALEXANDRA SHEA* Counsel of Record

NOTES

and small arms of a size and character that may be concealed on or about

2. Since Duncan

See Washington v. Glucksberg

Palko).

JFPP2010.indb 124 9/7/10 3:47 PM


- 125-

Duncan

given this kind of system Ibid.

ibid.

supra

Amicus Curiae

5. As the Court noted in Heller

Id.

Id

e.g., Gifford v. City of Los AngelesKaplan v. Bratton,

JFPP2010.indb 125 9/7/10 3:47 PM


- 126-

In re Preis,

Ruggiero v. Police Commissioner of Boston,

infra

Child Access Prevention

e.g., Fla.

Heller

have been raised in at least 156 cases since Heller.

State Constitutional Rights to Keep and Bear Arms

(see Commonwealth v. Davis City of Salina v. Blaksley

supra

Second Amend ment. See id

14. The Brief of the States of Texas, et al., as Amici Curiae

JFPP2010.indb 126 9/7/10 3:47 PM


- 127-

Id

et al., as Amici Curiae in Kalodimos v. Village of Morton Grove, 470 N.E.2d

et al

States or the citizens of their own States.

e.g., State v. LaChapelleState v. Fennell

Morrison v. State

only one modern case, State v. Delgado

State ex rel. City of Princeton v. Buckner

Kellogg v. City of Gary

Duncan Klopfer,

et al Heller

Heller is clear that the Second Amendment was motivated not by fear of formal abolition but fear that the federal

de facto

Heller

JFPP2010.indb 127 9/7/10 3:47 PM


id.

supra infra

HellerHeller

Id

free society.

e.g., Gonzales v. Carhart, 550 U.S. 124,

Heller

Heller

amici because it excludes aliens. See Brief Amicus Curiae of Gun Owners

of America, Inc., et al.et al

24. See, e.g., Beck v. Washington

State Court Organization 2004

JFPP2010.indb 128 9/7/10 3:47 PM


also Brief for Illinois, et al., as Amici Curiae

See, e.g., suprasupra

Thomas, Riddle, supra Amici Curiae

JFPP2010.indb 129 9/7/10 3:47 PM

INTEREST OF AMICI CURIAE1

Each of the amici curiae

Amici teach courses on constitutional law and have de-

Amici

in this case.Amici -

District of Columbia v. Heller

Amici

Prof. Richard L. Aynes, University

Prof. Yale Law School

Prof. Randy E. Barnett, University Law Center

Prof. Steven G. Calabresi, Northwestern University

Prof. Michael Kent Curtis, Forest University Law School

Prof. Michael A. Lawrence,

Prof. William and Mary Law School

Prof. UCLA School of Law

SUMMARY OF ARGUMENT

District of Columbia v. Heller, and

JFPP2010.indb 130 9/7/10 3:47 PM

LAW PROFESSORS

Immunities Clause of the Fourteenth Amendment.Amici

-

this end.-

Slaughter-House Cases

-

Slaugh-ter-House line with constitutional text and a near-unanimous scholarly consen-

Slaughter-House read

-

Substance and Method in the Year 2000

ARGUMENT

I. THE PRIVILEGES OR IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT PROTECTS SUBSTANTIVE FUNDAMENTAL RIGHTS AGAINST STATE INFRINGE-MENT.

JFPP2010.indb 131 9/7/10 3:47 PM


-

--

--

Dred Scott v. Sanfordformer slave was not a U.S citizen under the Constitution because of his race.

-

See -

--

Id. -

-

JFPP2010.indb 132 9/7/10 3:47 PM

LAW PROFESSORS

candidates in the South. CURTIS, NO STATE SHALL ABRIDGE,

-

-

slaves led. See, e.g.

affections of the human heart for children, for wife, or even for

-

Civil War, the framers of Section One of the Fourteenth Amend-

No

2

-

country. See -

-

JFPP2010.indb 133 9/7/10 3:47 PM


-

-

-

--

-

The Ripple Effects of Slaughter-House: A Critique of the Negative Rights View of the Constitution

See Randy E. Barnett, The Ninth Amendment: It Means What It Says

-

See Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States

--

ter.

-

-see also id. at

JFPP2010.indb 134 9/7/10 3:47 PM

LAW PROFESSORS

-

They protection by the Government, the enjoyment of life and

liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety

See RANDY E. BARNETT, -

on ).

--

-

See CHARLES L. BLACK, A NEW BIRTH

-

-

states then in the Union) had inserted into their own state consti-

JFPP2010.indb 135 9/7/10 3:47 PM


See Individual Rights Under State

Rights Are Deeply Rooted in History and Tradition?

5 while many oth-ers used a formulation virtually identical to 6

described some of the

-

--

or Immunities Clause in the Fourteenth Amendment

C.

-

-

-

-

-

See CINCIN-

-

JFPP2010.indb 136 9/7/10 3:47 PM

LAW PROFESSORS

-

idid., Justice

-

--

Id , 6 F. Cas. at -

these should be added the personal rights

the right to keep and bear arms

See also Bryan H. Wildenthal, Nationalizing the Bill of Rights: Revisiting

-

7

JFPP2010.indb 137 9/7/10 3:47 PM


-

Id.

Id

Id.In the House, Thaddeus Stevens, a member of the Joint Com-

-

-

id.

-munities Clause.

-

JFPP2010.indb 138 9/7/10 3:47 PM

LAW PROFESSORS

to the House that a constitutional amendment was needed to em-

Barron v. BaltimoreLivingston v. Moore

-

-

belief that Section One of the Fourteenth Amendment— and, in

-

See, e.g.

Revolutionary Constitutionalism in the Era of the Civil War and Reconstructionthe contrary, whether in debates over the Fourteenth Amendment or

-supra

JFPP2010.indb 139 9/7/10 3:47 PM


- 140-

see -

-

-

of each state-

of the United States.-

reversed Barron v. Baltimore

Florida, and North Carolina.10

11 Their efforts -

the citizens of each State shall be entitled to all the privileges and immuni-

JFPP2010.indb 140 9/7/10 3:47 PM

LAW PROFESSORS

- 141-

ties of citizens in the several States

12 -

When combined with the elimination of Section Five, this alteration

have been afforded U.S. citizens would have been limited to discrimi-

II. THE FOURTEENTH AMENDMENT’S PRIVILEGES OR IMMUNITIES CLAUSE INCLUDED AN INDIVIDUAL RIGHT TO BEAR ARMS

As was shown in Section I, supra -

-

Howard)

-

See also

-id.

JFPP2010.indb 141 9/7/10 3:47 PM


- 142-

See generally Robert The Second Amendment: Toward

an Afro-Americanist Reconsideration

Of central concern to the Joint Committee on Reconstruction

-See

See also Heller,

-

Id.

-

Id. at 516-17. -

-

JFPP2010.indb 142 9/7/10 3:47 PM

LAW PROFESSORS

Amendment.

in -

-

THE JOINT COMMITTEE Pt. II, 4 and Pt. II, 240. See Personal Security, Personal Liberty, and “The Constitutional

Right to Bear Arms”: Visions of the Framers of the Fourteenth Amendment, -

cally testimony heard by the Joint Committee on southern efforts to disarm freedmen and Unionists).

as a core civil

See also The Second Amendment and the Personal Right to Arms

-

see also id.

JFPP2010.indb 143 9/7/10 3:47 PM


- 144-

including the constitutional right of bearing arms See also

id.

-

and bear arms.

III. PRECEDENT DOES NOT PREVENT THE COURT FROM RECOGNIZING THAT THE PRIVILEGES OR IMMUNITIES CLAUSE PROTECTS AN INDIVIDUAL RIGHT TO BEAR ARMS AGAINST STATE INFRINGEMENT.

of the Constitution.

A. Slaughter-House

-

-

JFPP2010.indb 144 9/7/10 3:47 PM

LAW PROFESSORS

- 145-

Slaughter- House Cases

United States v. Cruikshank

Crui-kshank essentially reinstated Barron v. Baltimore, which the framers of

See supra Section I.C. Both Slaughter-House and Cruikshank

See Michael An-thony Lawrence, Second Amendment Incorporation through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses, 72 MO. L.

Slaughter-House and Cruikshank

in Slaughter-House

from that day to this. While Justice Miller did cite , it was only -

Slaughter-House

-

See Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, the Fourteenth Amendment, and the

In contrast, the dissents in Slaughter-House --

tion I, supra

-

JFPP2010.indb 145 9/7/10 3:47 PM


- 146-

-Slaughter-House -

Id.

those which of right belong to the citizens of all free governments IdThe decision in Slaughter-House was immediately condemned by

-

Id. Slaughter-

House

ee also

Slaughter-House -

Slaughter-House

16 Slaughter- House and Cruikshank

-Maxwell v.

Dow Twining v. New Jerseyand Adamson v. California 17

Slaughter-House -

Slaughter-House

amici -

JFPP2010.indb 146 9/7/10 3:47 PM

LAW PROFESSORS

- 147-

B.

Noncitizens

-

citizens, which had been denied in Dred Scott

-

-

-

-

idby states.

Id. See The Bill of Rights and the Fourteenth Amendment

JFPP2010.indb 147 9/7/10 3:47 PM


See also

-

-

-

See also id

equally

-

See Neal K. Katyal, Equality in the War on Terror -

-

IdAmici -

--

to citizens.

JFPP2010.indb 148 9/7/10 3:47 PM

LAW PROFESSORS

CONCLUSION

-

amici --

ment, reverse the decision of the Seventh Circuit, and remand for

DOUGLAS T. KENDALL Counsel of Record

CONSTITUTIONAL ACCOUNTABILITY CENTER

NOTES

amici

amici state that no counsel for a

amici or their counsel made a monetary

-

--

of Section One be added. Id. -

JFPP2010.indb 149 9/7/10 3:47 PM


- 150-

id. added later in the Senate.

reprinted in SOURCES OF OUR

reprinted in SOURC-see also reprinted in

reprinted in

reprinted in

reprinted in For further discussion, see Richard L. Aynes, Ink Blot or Not: The Meaning of Privileges and/or Immunities4. See, e.g. .

id. id. id. at 2765 (Sen. Howard).

-

6. E.g.

-

-

-

-

JFPP2010.indb 150 9/7/10 3:47 PM

LAW PROFESSORS

- 151-

--

Id-

Id. -

--

Id. See generally Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 10. See

JFPP2010.indb 151 9/7/10 3:47 PM


- 152-

11. Id. See also WALTER FLEMING, DOCUMENTARY HISTORY OF

12. N.Y. TIMES, supra

id. id. id. id. id. id. id. id. id. id. at

id. id. 14. See id.

id

15. E.g.-

Abortion and Original Meaning

See generally

-

17. E.g., Malloy v. Hogan Twining and Ad-amson Duncan v. LouisianaMaxwell).

-

-

-

Slaughter-HouseSlaughter-House

-

JFPP2010.indb 152 9/7/10 3:47 PM

INTEREST OF AMICI CURIAE1

BRIEF OF THE STATES OF TEXAS, OHIO, ARKANSAS, GEORGIA, ALABAMA,

INDIANA, KANSAS, KENTUCKY, LOUISIANA, MAINE, MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI,

NEW MEXICO, NORTH CAROLINA, NORTH DAKOTA,

CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH,

AND WYOMING AS AMICI CURIAE IN SUPPORT OF PETITIONERS

amici States have a -

District of Columbia v. Heller

-

in this case.

an era of robust interstate travel and commerce. As the Court has -

Saenz v. Roe, 526 United States v. Guest

JFPP2010.indb 153 9/7/10 3:47 PM


- 154-

Id.Shapiro v. Thompson -

-

Heller

and bear arms. See

-

GREG ABBOTT, Attorney General of TexasC. ANDREW WEBER, First Assistant Attorney General

JAMES C. HO Solicitor General Counsel of Record

CANDICE N. HANCE Assistant, Attorney GeneralOFFICE OF THE ATTORNEY GENERALCounsel for Amici Curiae

RICHARD CORDRAY, Attorney General of Ohio

TROY KING, Attorney General of Alabama

JFPP2010.indb 154 9/7/10 3:47 PM

ATTORNEYS GENERAL

- 155-

TERRY GODDARD, Attorney General of ArizonaJOHN W. SUTHERS, Attorney General of ColoradoBILL MCCOLLUM, Attorney General of FloridaLAWRENCE G. WASDEN, Attorney General of Idaho

JANET T. MILLS, Attorney General of Maine

LORI SWANSON, Attorney General of Minnesota

CHRIS KOSTER, Attorney General of Missouri

GARY K. KING, Attorney General of New MexicoROY COOPER, Attorney General of North Carolina

THOMAS W. CORBETT, JR., Attorney General of PennsylvaniaPATRICK C. LYNCH, Attorney General of Rhode IslandHENRY MCMASTER, Attorney General of South Carolina

ROBERT E. COOPER, JR., Attorney General of TennesseeMARK L. SHURTLEFF, Attorney General of Utah

JFPP2010.indb 155 9/7/10 3:47 PM


- 156-

INTRODUCTION

-

Amendment. Pac. Mut. Life Ins. Co. v. Haslip

--

Duncan v. Louisiana

-

--

-

these efforts, colonists formed militias to secure their arms. ROB-

-

-See JOYCE L. MAL-

JFPP2010.indb 156 9/7/10 3:47 PM

ATTORNEYS GENERAL

- 157-

-

Id.Nearly one hundred years later, in the aftermath of the Civil

--

See Heller

See

-

-

---

Heller

The common thread in these transformative events in our Na-

JFPP2010.indb 157 9/7/10 3:47 PM


-

-

-

SUMMARY OF ARGUMENT

-

Heller, the Court held that the

-Id. at

Hellerthe States. But the Court observed that its earlier, nineteenth-century

-

Id. Heller

-

ban that the Court determined was invalid in Heller. See CHICA-GO, ILL., MUN. CODE

-tion. Id. -

-tion materials. Id.

-Id. -

Id.

JFPP2010.indb 158 9/7/10 3:47 PM

ATTORNEYS GENERAL

-Heller

-

-

home and family.

Quilici v. Village of Morton Grove

, 567 United States v. Cruikshank

Presser v. Illinois Miller v. Texas, Quilici

same nineteenth-century cases that Heller

-

Dun-can

-

JFPP2010.indb 159 9/7/10 3:47 PM


- 160-

-

Heller-

unrestrained by the Second Amendment, may deny American citi-

Id. (internal

--

MENTARIES ON THE CONSTITUTION OF THE UNITED

ARGUMENT

I. THE SECOND AMENDMENT APPLIES TO THE STATES THROUGH THE FOURTEENTH AMENDMENT.

-

-

A.

The Due Process Clause of the Fourteenth Amendment bars

JFPP2010.indb 160 9/7/10 3:47 PM

ATTORNEYS GENERAL

- 161-

Washington v. Glucksberg

Reno v. Flores

-Pointer v. Texas -

trine in a series of decisions over the last century, the Court has held that the Due Process Clause of the Fourteenth Amendment incor-

See Schilb v. Kuebel Klopfer v. North Carolina Pointer

Mapp v. Ohio -DeJonge v. Oregon

Gitlow v. New YorkPalko v.

Connecticut Benton v. Maryland

Palko-

Duncan

See Id. at 151-54. The Court

Id.

B.

Era.

As the Court observed in Heller -

-

JFPP2010.indb 161 9/7/10 3:47 PM


- 162-

Id.Alden v. Maine

Id. Heller

Id.

1760s and 1770s, as relations between the colonists and the British -

Id. -

Id. It also led to the formation

OF PARLIAMENT COMMONLY CALLED THE BOSTON

-

-

-

-See JOSEPH J. ELLIS,

-

JFPP2010.indb 162 9/7/10 3:47 PM

ATTORNEYS GENERAL

-

-

-Heller

-

-

and the use of arms, who stand ready to defend their own

-

-

See STEPHEN P. HALBROOK, THE -

-

OF RIGHTS A. CONST. of 1776, DECLARATION OF

JFPP2010.indb 163 9/7/10 3:47 PM


- 164-

-

of the Constitution. As more States were admitted to the Union, the

See-

See Cockrum v. State

State v. Chandler

and noble defence of themselves, if necessary, and of their country, -

Nunn v. State

-

In sum, the historical record, much of it detailed by this Court in Heller -

the Nation.

C.

-

JFPP2010.indb 164 9/7/10 3:47 PM

ATTORNEYS GENERAL

- 165-

Heller, -

freed African- Americans in the Southern States, by statute as well See Id.

FREEDMEN, THE FOURTEENTH AMENDMENT, AND

HALBROOK, FREEDMEN)).The Framers of the Fourteenth Amendment acted to end these

-

AMAR, supra

supra

--

Heller

-force it. See Id.

Id.

JFPP2010.indb 165 9/7/10 3:47 PM


- 166-

Amendment).

-

--

FREEDMEN, supra, at 42.-

Amendment. See

In sum, at the time the Fourteenth Amendment was drafted and

Civil War disarmament of the freed slaves in the Southern States—-

-

-

-

bear arms. SeeSee

JFPP2010.indb 166 9/7/10 3:47 PM

ATTORNEYS GENERAL

- 167-

Heller

Seeamicus curiae brief in Heller -

et al. as Amici Curiae District of Columbia v. Heller

See Brief for the State of Texas et al. as Amici Curiae

amicus brief -

Second Amendment.

II. THE FEDERALISM CONCERNS INVOKED BY THE COURT OF APPEALS ARE MISPLACED.

--

cerns. See

-Id. Heller

-dressed any concern about federal control over state militias. As the

emphasis added

--

Id.

JFPP2010.indb 167 9/7/10 3:47 PM


where local differences are to be cherished as elements of liberty -

New State Ice Co. v. Liebmann -

--

Pointer -ed in Heller

-

their freedom from unreasonable searches and seizures, nor can they

Second Amendment.-

tions will continue under the Second Amendment. As noted in Hell-er

Id.-

Id.Nordyke v. King -

-

Medtronic, Inc. v. Lohr amici

-

-

JFPP2010.indb 168 9/7/10 3:47 PM

ATTORNEYS GENERAL

arms. See Pointer

III. THE CITY OF CHICAGO MISREADS HELLER.

of the District of Columbia considered in Heller, is invalid. In its

Amendment as construed in Heller

--

-See

Heller.

HellerHeller made clear

Heller, -

Id. -

JFPP2010.indb 169 9/7/10 3:47 PM


- 170-

Heller -

-

.Heller

observed in Heller-

See Id. NunnAndrews v. State, 50

-

State v. Reid, 1 Ala. -

Heller to

-

-

Heller -

JFPP2010.indb 170 9/7/10 3:47 PM

ATTORNEYS GENERAL

- 171-

Heller United States v. Miller, -

Rather, the Court made clear in Heller -

Id.

Heller

(emphasis added). In short,

-

Id.

See

-

See-

--

-

See Id.

JFPP2010.indb 171 9/7/10 3:47 PM


- 172-

-

Rather, as described herein, see supra -

-

CONCLUSION

GREG ABBOTT, Attorney General of TexasC. ANDREW WEBER First Assistant Attorney General

JAMES C. HO, Solicitor General, Counsel of Record

CANDICE N. HANCE Assistant Attorney GeneralOFFICE OF THE ATTORNEY GENERAL

NOTES

-

Id.

JFPP2010.indb 172 9/7/10 3:47 PM

ATTORNEYS GENERAL

APPENDIX

STATE CONSTITUTIONAL PROVISIONS SECURING THE RIGHT TO ARMS:1 AT THE FOUNDING (1776–1790S)

-

DECLARATION OF RIGHTS § XIII

STATE CONSTITUTIONAL PROVISIONS SECURING THE RIGHT TO ARMS: AT THE ADOPTION OF THE FOURTEENTH AMENDMENT (1868)

§ 22

JFPP2010.indb 173 9/7/10 3:47 PM


- 174-

STATE CONSTITUTIONAL PROVISIONS SECURING THE RIGHT TO ARMS: CURRENTLY GUARANTEED

JFPP2010.indb 174 9/7/10 3:47 PM

ATTORNEYS GENERAL

- 175-

None

JFPP2010.indb 175 9/7/10 3:47 PM


- 176-

HANDGUN POSSESSION / REGISTRATION / CONCEALED-CARRY REGULATIONS

-216

JFPP2010.indb 176 9/7/10 3:47 PM

ATTORNEYS GENERAL

- 177-

-415.26

JFPP2010.indb 177 9/7/10 3:47 PM


JFPP2010.indb 178 9/7/10 3:47 PM

Documents

JFPP2010.indb 1 9/7/10 3:47 PM - saf.org